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Migrant's lawyer challenges definition of smuggling

Canadian Border officials and police stand the deck of the MV Sun Sea (C) as it is guided into Canadian Forces Base Esquimalt past the Fisgard Lighthouse with an estimated 490 suspected Tamil migrants on board in Colwood, British Columbia on Vancouver Island August 13, 2010. Authorities intercepted and boarded the ship after it entered Canadian waters.

ANDY CLARK/Andy Clark/Reuters

It's not human smuggling if you're essentially trying to get caught, says a lawyer for one of the MV Sun Sea migrants.

Rod Holloway addressed the Immigration and Refugee Board on Friday during an admissibility hearing for a man accused of being a smuggler. The man, who can't be identified because of a publication ban, has admitted he worked on the ship, but denied have anything to do with organizing the voyage.

In his submission, Mr. Holloway said the MV Sun Sea's intention was far different from that of a Chinese boat that arrived a decade earlier. In that case, Mr. Holloway said, some of the migrants were dropped off on the west coast so they could make a run for it. In the MV Sun Sea's case, people onboard cheered when they were intercepted by Canadian authorities.

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"The intention appears to have been to bring the ship to Canada and to report at a port of entry, not to try and enter Canada clandestinely," he said.

"What has happened in this case is not smuggling and the people involved should not be denied access to the refugee process when they came here in good faith."

Past IRB detention reviews and admissibility hearings have considered what constitutes membership in a terrorist organization - such as the Liberation Tigers of Tamil Eelam - and what makes someone a human smuggler.

Mr. Holloway went in a slightly different direction, challenging the very definition of smuggling.

He said smuggling must entail clandestine and illegal entry. To support his case that the MV Sun Sea was not doing that, he submitted as evidence a local television report from the time the ship arrived last August. That report details how pleased the migrants were when they were met by Canadian officials.

He also submitted a Globe and Mail article that provides a detailed timeline of the response by government officials, though he did not specify why he chose it during his address to the IRB adjudicator. The adjudicator reserved his decision.

Mr. Holloway said if the IRB somehow finds that people smuggling did occur, it must conclude that his client did not engage in it.

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The migrant, dressed in red prison-issued clothing and white shoes, testified on his own behalf through a Tamil interpreter. He said he grew up in an LTTE-controlled area, and once the Tigers lost the 26-year Sri Lankan civil war, was continually harassed by government security forces.

In one instance, he alleged he was assaulted by the soldiers. In another, he said troops tried to pull him into their vehicle until members of the public intervened. It was shortly after the soldiers showed up at the man's home that he fled Sri Lanka in fear. He then made his way to Thailand.

While there, the man paid an agent $5,000 to board the MV Sun Sea. Another $25,000 was to be paid later, and the man's family has told him the balance is now down to $10,000.

The man admitted he worked in the ship's engine room, but said he agreed to do so only after the ship's original crew left just before it was to disembark. He said he felt he had little choice, since not doing so would have meant the end of his opportunity to come to Canada. Once he got to this country, he said, he had every intention to meet with Canadian officials and explain his actions.

Kenny Nicolaou, the Canada Border Services Agency's hearing representative, argued the migrant should be held in custody because he was an integral part of the voyage as one of 12 crew members. The IRB's ruling could eventually affect the cases of the other crew members who have also been accused of human smuggling.

Mr. Nicolaou said the migrant's version of events did not make sense. He said it was unlikely the smugglers would organize a voyage without making sure the original crew would stay on.

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The MV Sun Sea arrived in B.C. last August carrying 492 Tamils. Twenty-eight of the migrants remain in detention. Two have been deemed inadmissible and ordered deported.

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Based in Vancouver, Sunny has been with The Globe and Mail since November, 2010. More

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